The Biden administration finalized a rare veto to block a massive gold and copper mine in Alaska’s pristine Bristol Bay watershed, but the brawl over the deposit, fueled by global clamor for materials to be used in low-emissions technology, could keep the region in the spotlight.
Developers are already vowing to fight EPA’s final determination in court, calling the move illegal and unprecedented. Others who have spent years fighting the project in one of the world’s premier salmon fisheries are quick to note mining could crop up in other areas around the region (Greenwire, May 27, 2022).
The decision is seen as a major victory for Alaskan tribes that for more than a decade have fought the Pebble project.
Alannah Hurley, executive director of the United Tribes of Bristol Bay, said protections in the final determination are a “great step forward” and that “our tribes and people will continue working to build a sustainable future for Bristol Bay,” adding “our work will not be done until every inch of our traditional homelands are protected.”
John Shively, CEO of Pebble LP, a subsidiary of Canadian mining company Northern Dynasty Minerals, slammed EPA’s decision.
“This preemptive action against Pebble is not supported legally, technically or environmentally,” he said. “As such, the next step will likely be to take legal action to fight this injustice.”
EPA’s Pebble decision is part of a series of moves Biden administration officials have made this week to block areas from development, including cementing protections for the Tongass National Forest in Alaska and restricting mining in Minnesota’s Boundary Waters Canoe Area Wilderness for decades.
The mining restrictions have fueled Republican and industry accusations that Democrats are pushing an aggressive climate agenda while failing to secure domestic mines and supply chains (E&E Daily, March 3, 2022).
EPA’s determination marks just the 14th time that the agency has issued such a veto. In the last 30 years, for example, EPA used the authority just twice — once to kill a World War II flood control project in Mississippi and a second time to halt a sprawling mountaintop-removal project in Appalachia (Greenwire, Jan. 30).
In its final determination for Pebble, EPA concluded the mine, as proposed, would damage the region’s fisheries and backed a finding from the Region 10 office that nearly 100 miles of protected stream habitat and more than 2,000 acres of wetlands and other federally protected waters would be permanently destroyed (Greenwire, Dec. 2, 2022). The decision bars developers or other miners from dumping dredge or fill into three specific watersheds in Bristol Bay, a move seen as critical to protecting fisheries and tribal culture there.
EPA Administrator Michael Regan on a Monday call with reporters acknowledged the decision could be challenged in court and said he could not predict whether a future administration would attempt to overturn the decision. But he also insisted the work is based in “sound science,” a strong record and extensive dialogue with tribal nations.
“There is a very solid record here that we’re very proud of for these two determinations,” said Regan.
Despite Pebble’s vow to fight, experts say the company should expect tough sledding in court, and it’s not clear a future administration would reverse course. Carl Tobias, a professor at the University of Richmond School of Law, said developers won’t likely have much luck given the composition of the district court in Alaska and the 9th U.S. Circuit Court of Appeals — where a lawsuit would likely land — and that litigation would likely be lengthy and costly.
“Who knows what’s going to happen in 2024,” said Tobias. “But I just don’t see that litigation is the path. It seems pretty unlikely they’re going to prevail.”
Restricted to Pebble proposal
The saga around the Pebble mine has been marked with repeated denials and setbacks, as well as intrigue around possible political influence and secret recordings.
The Obama administration in 2014 moved to block Pebble’s use of certain waters and watersheds. Under the Trump administration in 2020, the Army Corps of Engineers rejected Pebble’s permit application, finding the project would likely damage the Bristol Bay ecosystem — a move that the company then appealed.
That same year, covertly recorded videos from an environmental group sting surfaced showing Pebble mine developers touting their relationship with Alaska Gov. Mike Dunleavy (R), as well as their ability to lobby the White House. In the tapes, then-Pebble Partnership executives revealed their goal to extend the copper and gold project from the current 20-year mine proposal to a 180-year mining district at the headwaters of Bristol Bay (Greenwire, Sept. 22, 2020).
And last year, EPA’s Region 10 office published a recommended determination calling for the mine, as proposed, to be vetoed.
Regan told reporters Monday that the decision was specific to the Pebble mine plan of 2020 and does not address other resources in Alaska, where Dunleavy has offered a warm welcome to the mining sector.
“By no means is this meant to send any signals beyond this specific project,” said Regan.
The final determination leaves open the door for future projects that don’t damage the Bristol Bay watershed in the same way.
But Radhika Fox, EPA’s assistant administration, emphasized that the agency’s determination ensures Pebble cannot move forward even if it wins its ongoing administrative appeal before the Army Corps and secures needed permits.
“Army Corps could not approve this project given the 404(c) determination has been made, unless the Pebble company were to somehow amend their proposal and that a future proposal does not have the similar adverse effects of this proposal,” said Fox.
Environmental groups, tribal nations and Democrats celebrated the veto as a historic win, while the decision was met with skepticism and concerns by Alaska Republicans and the mining sector.
“The Environmental Protection Agency’s Final Determination is a landmark conservation decision that will protect Bristol Bay for generations to come,” said Tim Bristol, executive director of SalmonState.
“Today is a great day for Bristol Bay, and one that many thought would never come,” said Bristol Bay Native Corp. CEO Jason Metrokin. “While the immediate threat of Pebble is behind us, BBNC will continue working to protect Bristol Bay’s salmon-based culture and economy and to create new economic opportunities across the region.”
But Republicans and industry groups warned the veto could have a far-reaching chilling effect in Alaska and vowed to ramp up oversight.
The National Mining Association in a statement warned that the Biden administration is pushing an electrification agenda and energy priorities that rely on access to minerals and metals all while blocking domestic mining. “This end-run of the proper permitting process creates significant regulatory uncertainty for the mining industry during a crisis point for minerals demand,” the group wrote.
Republican Sen. Dan Sullivan of Alaska in a statement said that although he opposes the Pebble mine, he’s also against EPA’s pursuit of a “preemptive veto” that raises legal questions and “has the potential to establish a very troubling precedent for resource development” of state land.
“I pressed the EPA administrator to acknowledge that today’s EPA decision does not set a precedent for other major mining and resource projects in Alaska, which he did publicly today,” said Sullivan. “I encourage other Alaska elected leaders to join me in holding the entire Biden administration to this public commitment.”
House Republicans in particular will scrutinize EPA’s decision and propose legislation to undo it. In the past, the GOP has been wary of preemptive Clean Water Act vetoes and has probed the agency’s actions related to Pebble.
In a statement, Dunleavy echoed Sullivan’s concerns.
“EPA’s veto sets a dangerous precedent,” he said. “Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams.”